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Schoenrock v. Anden Corp

OPINION FILED JUNE 20, 1984.

D.L. SCHOENROCK ET AL., PLAINTIFFS-APPELLEES,

v.

ANDEN CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. Warren G. Fox, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Defendant, Anden Corporation, appeals from a judgment for $1,300.83 entered in favor of plaintiffs, D.L. and Catherine Schoenrock. Defendant had constructed and sold a home to the plaintiffs in 1977. Plaintiffs subsequently filed a small claims complaint on February 23, 1983, alleging a defect in the sewer pipe construction. After a hearing, the circuit court of Lake County found that defendant had improperly aligned the sewer line in constructing the home, causing the sewer to back up and damage plaintiffs' lower floor and requiring plaintiffs to incur costs for repairing the sewer. The court found for plaintiffs and defendant appeals.

On appeal defendant argues that plaintiffs should be barred from obtaining relief because the implied warranty of habitability does not extend liability to a builder for defects which do not manifest themselves until two to six years after the sale of the home. Defendant also urges that because plaintiffs failed to notify it of the defect and give it an opportunity to make repairs, relief should be denied.

The plaintiffs moved into the home constructed by defendant in June of 1977. After about two years, they experienced a sewage backup into an unfinished basement of the home. They contacted a plumber, who had to rod the pipe out. This procedure was repeated six times over the next three years, and plaintiffs paid this plumber a total of $191. Plaintiffs contacted a second plumber in November of 1981 who also rodded the pipe out and provided temporary relief.

In February 1983 this second plumber, who testified at trial, broke open the concrete floor covering the sewer pipe and discovered that the pipe was improperly pitched so that at one point sewage flowing through it was required to run against the force of gravity. He decided to open the concrete floor based upon the history of backups and because his rodding in November of 1981 found the presence of grease and soap indicative of a "swale" (low spot) in the sewer line which would prevent these substances from flowing out and permit them to congeal. He hypothesized that the improper pitch resulted from improper installation of the pipe or some subsequent event. He replumbed the pipe to eliminate the pitch and charged plaintiffs $1,088.83 representing 32 hours of labor. Plaintiffs paid $20 to a scavenger to remove broken cement.

Plaintiffs testified that they never reported the problem to defendant because they thought that something had been thrown in the toilet causing the problem and because both plumbers diagnosed a possible cause of the problem as building debris caught in the pipes. They admitted receiving a warranty after closing the sale and that they had previously contacted defendant to perform other repairs. The court admitted into evidence a checklist on which defendant warranted mechanical and structural defects for one year and on which D.L. Schoenrock's signature appeared.

Plaintiffs further testified that the backed up sewage caused their carpet to mold, requiring its replacement with 80 yards of comparable grade at $17 per yard. At the same time they recarpeted their entire home and paid the $3,300 bill. They never contacted defendant about the carpeting replacement.

The trial court found in favor of plaintiffs and awarded damages representing their plumbing expenses and the scavenger bill in the amount of $1,300.83. However, it awarded only $1 for the carpeting loss because plaintiffs failed to establish the value of the damaged carpeting.

Basically, defendant raises two issues for consideration on appeal. First, it contends that a builder-vendor of a new home cannot be held liable for defects that do not manifest themselves for two to six years after the sale of the home. Secondly, it contends that the purchaser of a new home is precluded from recovering for defects under the doctrine of implied warranty of habitability where the purchaser fails to notify the builder-vendor and allow it the opportunity to make the repairs. After consideration of the issues, the case law and the relevant statutes, we conclude that the trial court should be affirmed.

Defendant contends that the plaintiffs first discovered the problem in 1979 and should have acted prior to the time they filed suit. Contrary to this assertion, however, the plaintiffs' testimony reveals that the defect manifested itself within two years, but was not actually discovered until the basement floor was torn up to expose the pipe. Thus, we believe plaintiffs could not reasonably have been expected to act any sooner than they did.

Defendant also argues that a builder-vendor does not guarantee a home for its lifetime and that a claim based upon a defect manifesting itself as late after the closing as here should not be encompassed within the implied warranty of habitability. Defendant refers to Redarowicz v. Ohlendorf (1982), 92 Ill.2d 171, 185, 441 N.E.2d 324, 331, where our supreme court held that the implied warranty of habitability extended to a subsequent purchaser is limited to latent defects which manifest themselves within a reasonable time after the original purchase of the house. Defendant attempted to distinguish Knox College v. Celotex Corp. (1980), 85 Ill. App.3d 714, 407 N.E.2d 176. It contended that Knox was based upon fraud and misrepresentation, and because of this the court found that the plaintiff did not delay unreasonably in discovering the true defects. It contends that there were no representations made inhibiting the Schoenrocks from enforcing their claim. It claims that they could have discovered the defect earlier than when in fact it was discovered. However, Knox was reversed by our supreme court upon grounds which will be discussed later in this opinion. Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 430 N.E.2d 976.

• 1 Although defendant refers to the concept of statutes of limitations, it never moved to dismiss the complaint on this basis and therefore has waived this issue. (Conley v. Rust (1973), 12 Ill. App.3d 26, 29, 297 N.E.2d 397, 400.) The essence of defendant's argument appears to relate to the time span for which an implied warranty of habitability applies. Resolution of this issue requires reference to the applicable statute of limitation. These were not cited by either party, but are dispositive of this appeal.

Section 13-214 of the Code of Civil Procedure provides, in pertinent part:

"Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 2 years from the time the person brining an action, or his or her privity, knew or should ...


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